Abortion and Irish public policy

It came as a great surprise to women activists on reproductive rights, and indeed to the general population, when a hitherto unknown ‘pro-life’ group appeared in 1981 arguing for a referendum of the population on the subject of abortion. They sought to insert a foetal right to life clause in the Irish written Constitution. It was a surprise because no one was campaigning for abortion at the time. Indeed the main concern was the absence of a legal right to contraception for women and men and teenage girls and boys. This was not a situation where some gains had been made which were now being unwound - as in the USA.

In fact, abortion has been illegal since 1861, when Ireland had been part of the United Kingdom. Nothing much changed for the better for women when Ireland became independent in 1922. Up to 1967, pregnant women with unwanted pregnancies in Ireland either had their baby in England and gave the child up for adoption, used the limited abortion provisions in England (Infant Life Preservation Act, 1929) or, if young and unmarried, were placed in a convent laundry in Ireland where they gave birth in secret and their child was taken away for adoption in Ireland or the USA. Information or publication on abortion of any type was banned under censorship laws. English magazines with advertisements for abortion clinics in the UK were threatened with being banned from circulation in Ireland. In 1977, feminist Marie McMahon was prosecuted for having copies of the banned UK feminist magazine Spare Rib.

In 1967, all of this changed with the Abortion Act of 1967 that permitted the termination of pregnancies on a wide range of grounds in England, Scotland and Wales, but not in Northern Ireland. Under the border-free travel provisions between Ireland and England, there was nothing to stop Irish women from travelling to England for an abortion. And so they did - in the thousands. The numbers of women giving Irish addresses when seeking an abortion in England is within the range of 4000-5000 a year.

The 1967 Abortion Act in England appeared to end backstreet abortion in Ireland. Illegal clinics had sprung up during the war years when travel to England was impossible and pregnant women got trapped on the island of Ireland and had to resort to whoever would assist them for a fee. Prosecutions took place and were regularly reported in the Irish Times newspaper of the period. The 1970s saw the rise of a women’s movement and feminist thinking with emphasis on the legalisation of contraception rather than abortion. With the proposal to have a referendum on the right to life of the foetus in 1981, women’s groups had to rapidly and clumsily adjust to the imposition of a debate they were ill-equipped to address - lacking the concepts, language and theological tone which was adopted by protagonists. The referendum took the form of a ballot to agree or disagree with the Eighth Amendment to the Constitution, which ‘acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate that right’. It was never made clear who or what is the ‘unborn’ or at what moment an ‘unborn’ manifests itself or acquires personhood, viability or a right to exist.

Anti-amendment groups formed across the country - campaigning, lobbying, leafletting. The pro-amendment campaign of mainly lay Catholics was better planned, organised, had singular messages (abortion is murder), were ready to resort to unpleasant tactics such as bombarding Dáil members with hate mail, and employed visual images of a purported foetus in the womb. It would appear that their campaign had considerable US support and that their legal adviser, William Binchy, had studied abortion law in the USA. The debate on abortion was highly charged and divisive in the society. The Amendment was passed by a two-thirds majority in 1983 and the Eighth Amendment was duly inserted into the Constitution, but was never transposed into a law. There began a long series of legal challenges to the ban on abortion.

In 1988, a pregnancy counselling service was prosecuted for providing information on abortion in England. Following a conviction, the service appealed to the European Court of Human Rights in Strasbourg, France, on the grounds of the right of individuals to information. In 1988 this case was won in Strasbourg, and women and teenagers could now legally seek information about abortion facilities in other countries.

The abortion issue reignited in 1992, when the chief legal officer of the State issued an injunction in the High Court against a child aged 14 years (Ms X) and her parents preventing them from leaving Ireland to seek an abortion in England. Ms X had been raped by a middle-aged man known to her family. Ms X was placed in a hospital in Dublin and prevented from leaving the building. She was interned. There was political turmoil that there could be such a lack of compassion for the child who had been raped and her parents. There were street demonstrations, questions in the European Parliament and lobbying of TDs in favour of Ms X. Finally the Supreme Court ruled that since she might take her own life, the injunction on her and her parents should be lifted, on the grounds of a risk of suicide if she did not obtain an abortion.

This was far from ending the Case of Ms X. While the Case of Ms X was before the Irish Courts, the Government was preparing to sign a European Treaty, the Treaty of Maastricht. Unbeknownst to the Dáil and the media, the Government had persuaded fellow member states of the European Union to add a protocol or appendix to the Treaty of Maastricht which provided that no acts of the European Union could interfere with Ireland’s Eighth Amendment to the Constitution, Article 40.3.3º. The other member states agreed and in February 1992, Ireland’s abortion regime became part of a European Treaty. To this day, it is difficult to determine whether this unique Treaty clause was a desperate act of the pro-life campaign, who had observed that the Ms X case was likely to undermine the absolutism of their earlier victory; or whether it was their intention from the outset to use Ireland as a springboard to get an anti-abortion provision in an international treaty.

There have been four further referendums on abortion in Ireland - on the right to information on abortion and the right to travel outside of Ireland for abortion services. In each instance, doubts about an absolute ban on abortion have been articulated in an ever-widening vote to agree to an opening up of the law to permit abortion or information in even a restricted context. One could argue that in the absence of a law, the population has been ‘referended’ into passivity.

In the case of Miss C, a very young girl who had been raped by a relative, was pregnant and in the care of the State with foster parents, difficulties arose in bringing her abroad in the company of a social worker. Her parents were suddenly provided with legal advice by third parties and subsequently opposed her removal to the UK. She was eventually allowed to go abroad following further legal developments.

Ireland and the European Court of Human Rights

Three women known as A, B and C challenged the absence of an abortion law to protect them at the European Court of Human Rights in Strasbourg, France under the European Convention on Human Rights. A judgment was delivered in December 2010. The absence of abortion opportunities had presented each woman with a different dilemma. The Court ruled that the pregnant woman, Ms C who was suffering from a rare cancer and had been unable to obtain an abortion in Ireland, had incurred damage to her health which was a breach of her human rights.

All three women complained to the Court that The impossibility for them to have an abortion in Ireland made the procedure unnecessarily expensive, complicated and traumatic. In particular, they claimed that the restriction on abortion stigmatised and humiliated them and risked damaging their health and, in the third applicant’s case, even her life. ‘

While observing that each Member State had the right to determine its own policies on matters such as abortion, in Ireland the Constitution allowed for situations where the right to life of the mother could be at risk. This was such a case. The Court noted that there was a ‘lack of clear information from the Government to the Court as regards lawful abortions currently carried out in Ireland…there was no explanation why the existing constitutional right had not been implemented to date.’ The Court considered that while the European Convention on Human Rights did not confer a right to abortion on anyone, it did provide for a person’s physical and psychological integrity, including within their private lives, and so Ms C’s rights had been breached.

With the rise in migration from outside the European Union into Ireland since the 1990s, a new dilemma presented itself for migrant and asylum seeking women and girls in Ireland. Some young unaccompanied and underage girls arrived in Ireland having experienced rape or were raped following their arrival in Ireland. In some instances, the State had apparently issued temporary travel visas to allow them have a termination abroad (1). State support has also been provided to women asylum seekers in the form of visas to enter the UK and to return to Ireland following a pregnancy termination. This is legally peculiar, since the law in Ireland applies to all women in Ireland and not just Irish women.

Emergency contraception or the morning-after pill was regarded as an abortifacient under Section 58 of the Offences Against the Person Act, 1861 and its dispensing was a criminal offence until 2001. It remained a prescription-only product until 2011, which required a girl or woman to quickly make contact with a GP to obtain a prescription and then find a pharmacy to dispense the prescription. The State still retains the right to ban the circulation of publications which advocate the procurement of abortion. Several pamphlets from UK abortion campaigns remain banned in Ireland since 1983.

[This is an edited excerpt from Pauline Conroy’s (2012) Ireland - Rape and Incest not Grounds for Abortion, in Papers on Reproductive Rights for the Twenty First Century.

(1) Information supplied to author by social workers

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